Hennessy
-v-
Cherub Creche Ltd. (dissolved)
Claim
1.1. The case concerns a claim by Ms Louise Hennessy that Cherub Crèche directly discriminated against her on the ground of gender contrary to Sections 6(2)(a) of the Employment Equality Acts 1998 to 2004, in treating her discriminatorily and harassing her during her pregnancy and discriminatorily dismissing her by way of constructive dismissal contrary to S. 8(1)(b) and S. 8(6) and S. 14(7) of the Employment Equality Acts 1998 to 2004.
Background
2.1. The complainant submits that the owners of Cherub Crèche subjected her to harassment and discriminatory treatment shortly after she had told them she was pregnant. She submits that this took the form of constant and unfounded criticism, conflicting instructions, being asked to do cleaning work not appropriate for a woman at her stage of pregnancy, and being refused leave with pay for antenatal visits. She further submits that she was discriminatorily dismissed in that it was indicated to her she would not be allowed back to work for the respondent after her maternity leave.
2.2. The respondents deny discriminating against the complainant.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on11 August 2005. On 28 September 2005, in accordance with her powers under S. 77(5) of the Acts, the Director granted an extension of time for the referral of the complaint. A submission was received from the complainant on 4 January 2007. A submission was requested from the respondent on 8 January 2007; however, the respondent did not engage with the Tribunal until the hearing of the complaint, despite written requests for information on 2 February 2007, 26 March 2007, 3 April 2007, 16 May 2007, 21 June 2007, 2 August 2007, 17 September 2007 and 8 November 2007. On 23 March 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On 14 September 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A hearing of the claim was held on 21 January 2008. The last piece of correspondence relating to the complaint was received on 18 April 2008.
Summary of the Complainant’s Written Submission
3.1. The complainant submits that she started working at Cherub Crèche in January 2004 with no problems or complaints. She told her employers that she was pregnant some time in April of 2004, and that while work continued as normal for a while, she increasingly felt she was being “pulled up on things”. The complainant submits she started to keep a record of negative incidents.
3.2. The complainant submits that on 22 July 2004, she was told that the owners were not happy with her work, that she was “sitting a lot”, and that she was not providing enough learning to her class. She further submits that on that day, she was criticised for the quality of her cleaning and that she was forced to get down on hands and knees to clean a milk stain while the owner was watching her. She also submits that on that day, she was told she could use the garden of the crèche for only one hour a day and that she was not allowed to bring a chair outside, but that she should sit with the children on the ground.
3.3. The complainant submits that during her pregnancy, she was expected to carry out the same amount of cleaning as her colleagues, viz. mop floors, clean toilets, clean the cots inside and out and under them, and change toddlers. She submits that her work appeared to be the only one checked to make sure it was done, and that this checking-up commenced after she had told her employers she was pregnant.
3.4. The complainant submits that on 29 July 2004, a colleague informed her that an alleged complaint by parents about her was in fact about another staff member, and that she was wrongly accused.
3.5. The complainant submits that on 4 August 2004, the respondents called her into their office and told her she could no longer avail of leave with pay for her antenatal visits, that they were not obliged to provide this, and that she would have to take annual leave or unpaid leave to cover her antenatal visits in the future.
3.7. The complainant further submits that the owner of the crèche asked her to leave and not return to work after her maternity leave. She submits that the owner of the crèche screamed at her and told her she wanted her out of her sight. The complainant submits that when she asked the parent in question about the alleged complaint, the parent denied making any complaint to the crèche owner.
3.8. The complainant submits that shortly afterwards, she fell ill with a kidney infection. She submits that when her mother went to the crèche to submit her medical certificates and to collect her salary at the end of September, 2004, her mother was refused “for insurance purposes”. The complainant submits that previously in such situations, wages had been left in the crèche to be passed on to staff who had to be absent for some reason.
3.9. The complainant submits that when she attended the crèche herself on 30 September 2004 to collect her salary, she was called into the office to face criticism for tasks allegedly left undone on the day before she went on sick leave on nearly two weeks earlier.
3.10. The complainant submits that following an inspection of the crèche by the Health Board in October 2004, the respondent said to her that the woman from the Health Board had said that she – the complainant – could not do her job properly if she could not wash the walls and skirting boards. The complainant submits she was seven months pregnant at the time. The complainant also submits that during the same conversation, she told the respondent that she had checked on her maternity entitlements, and that she was entitled to leave with pay for her antenatal visits. She submits that the respondent told her she would be paid for same, anyway. The complainant further submits that it was also alleged that she never returned to work after her antenatal visits, which the complainant submits is not true. According to the complainant, this conversation took place on 13 October 2004.
3.11. On 14 October 2004, according to the complainant, she was called into the office shortly after noon and was told that she was to start her maternity leave immediately. She submits that the respondent told her that her GP had said she was “unfit for work”, as her baby was due on 7 November. The complainant submits that this was an error and that the baby was due on 9 December. She submits that she was asked to leave immediately and was not allowed to work the day out.
3.12. She submits that she contacted her GP who said that the respondent had enquired with her whether it was ok for the complainant to work up to one week before the due date, and that she had told the respondents that was illegal. The complainant submits that later that day, she was asked by the respondents to submit a letter from the hospital to ascertain the due date. She submits that when that letter had been forwarded to the respondents via a colleague, she received a phone call from them to ask whether she would be reporting for work in the morning. She submits that she told them that due to the events during her pregnancy, she would not be returning to work until after her confinement.
3.13. The complainant submits that after she left work for her maternity leave, she had difficulties receiving her salary for October 2004, and that it was forwarded to her via a colleague after 1 November 2004.
Summary of the Respondent’s Written Submission
4.1. The respondents submitted a written statement in response to the complainant’s statement at the hearing. The complainant was given an opportunity to respond to same in writing, and the respondents submitted a further response to the complainant’s response.
4.2. The respondents’ written submission states that the complainant was employed as a teacher and child care worker, but also admits that no written contract of employment exists for the complainant. A later submission by the respondents amends this statement to stating that the complainant was originally hired as a child care worker, but later asked to take on the duties of a pre-Montessori teacher. The respondents deny that they refused to pay for the complainant’s ante-natal visits.
4.3. The respondents submit that they felt the complainant was spending too much time with her class in the garden instead of the classroom, and was “passively watching them” instead of furthering the children’s educational progress. The respondents also submit that they were never informed that the complainant was unable to carry out tasks she was assigned to do. The respondents deny in particular that they asked the complainant to get down on her knees and clean walls and skirting boards.
4.4. The respondents submit that all staff were paid for their ante-natal visits. The respondents submit that they had a problem with not receiving sufficient advance notice from the complainant for her ante-natal visits.
4.5. With regard to the events that unfolded on 14th October, 2004, the respondents submit that Ms Odel Grant was told by the complainant that her baby was due on the 7th of November, and that the complainant asked Ms Grant to telephone her doctor to ascertain the due date. The respondents further submit that Ms Grant would not have known the contact details of the complainant’s doctor had she not been given those by the complainant herself. The respondents submit that Ms Grant was concerned at that point for the complainant’s health and therefore requested her to leave and to get correct information from her doctor. The respondents submit that the complainant’s doctor subsequently telephoned Ms Grant and explained that the complainant had got her dates mixed up and that the baby was due on the 9th of December. Last, the respondents submit that neither the complainant nor her doctor had submitted that she was medically unfit for work.
Conclusions of the Equality Officer
5.1. Three specific issue arise for the Tribunal in the context of this decision:
(a) the issue of credibility, in light of the conflicting evidence on certain events between the parties;
(b) whether the treatment the complainant experienced does constitute harassment and less favourable treatment in light of her pregnancy, and
(c) whether the complainant was discriminatorily dismissed by the respondent.
5.2. The complainant, when asked to provide more details about her employment with the respondents, stated in oral evidence that she was employed as a child care worker, and responsible for the toddler room, where she had responsibility for 15 toddlers between 4 months and 2 ½ years. She would supervise the children from 8am to 9am, and then take the older children to pre-Montessori class. Her lunch break was from 12-1. In the afternoon, she would again supervise the toddler room, provide tea and food for the children and do the tasks assigned to her on the crèche’s cleaning rota. The afternoon nap of the children occurred during the staff lunch break, and staff were obliged to check up on them every 15 minutes. Her workday ended at 6pm. This evidence was not contested or rebutted by the respondents.
5.3. With regard to her cleaning duties, the complainant stated that this was done through a cleaning rota among the staff and included mopping floors, cleaning toilets, and changing cots. The complainant stated that the crèche did not employ a professional cleaner. She further stated that the laundry was done by the Directors.
5.4. When asked why the crèche did not employ a cleaner, Ms Odel Grant pointed out that cleaning would go on all the time, including floor cleaning twice a day. On further questioning, Ms Grant confirmed that there was no professional cleaner employed for weekend cleanups, either. She confirmed that on inspection, the HSE expressed dissatisfaction with the level of cleanliness in the crèche.
5.6. With regard to the frequency of her ante-natal checkups, the complainant stated further that she would attend her GP once a week, and have a hospital appointment once a month, that is, one kind of medical appointment per week. Her hospital appointments would mean a time commitment of four hours, or one half day of missed work.
5.7. With regard to incidents that happened before the complainant started to keep her log of incidents, she stated in response to a direct question that when she announced her pregnancy at work, Ms Carmel Grant told other childcare workers not to get pregnant. The complainant said that this was possibly meant to be a joke, but that she did not find the remark funny.
5.8. I find it credible that this incident occurred and the complainant’s response to it. The respondent did not rebut this evidence. I find that it fulfils the definition of harassment pursuant to S. 14(7)(a) of the Acts, being defined as “conduct with in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
5.9. I turn now to the question of the complainant being criticised, both for how she did her work as a child care worker/pre-Montessori teacher and how she discharged her cleaning duties.
5.10. The Labour Court’s findings in A Company v. A Worker [ED01/1] are very much relevant to this part of the complainant’s case. In A Company v. A Worker, the worker was employed for approximately six weeks before advising her employer that she was pregnant. Her work had not given rise to criticism prior to her announcement, but continued to be criticised afterwards. The employer contended that the worker was dismissed due to her poor work performance and her incapability to carry out the requirements of the job to the employer’s satisfaction. The employer also contended that three other employees had been employed during their pregnancies without difficulties.
5.11. The Court stated in that case that
Pregnancy can change the ability of the worker to do the job for which they are employed. They may suffer more sickness than normal: they may find that they are constantly tired. They may find it extremely difficult to perform the full range of duties associated and in a minority of cases may find it impossible. It is for this reason that pregnant workers are afforded special protection under the Equal Treatment Directive and Pregnancy Directive.
A worker cannot be discriminated against or be dismissed while pregnant except in exceptional grounds unconnected with the pregnancy. In addition, such grounds must be clearly stated in writing.
5.13. Ms Carmel Grant stated that she received a phone call from a parent that the complainant had told the parent that one child had spilt orange juice over her child, and that the child was not cleaned up and a damp spot was left on its chest. Ms Grant stated that this put the baby at a risk of infection.
5.14. With regard to the conflict of evidence over this particular incident, I prefer the complainant’s evidence over the respondents’. The complainant was firm and detailed in her recollection of how she cared for the child in her care after the spill. The respondent was recounting what a parent had told her on the telephone. It appears that the respondent believed what the parent had told her without any further follow-up, or the written procedure that the complainant would have been entitled to pursuant to A Company v. A Worker.
5.15. With regard to other criticisms of the complainant’s work performance, Ms Carmel Grant stated that on 30 September 2004, she called the complainant into her office, as issues had arisen with regard to her cleaning, the orderliness of her classroom library and general performance of her duties, thereby confirming the complainant’s evidence on this matter. Ms Grant went on to state that this was not connected to the complainant’s pregnancy, and that another staff member went through three pregnancies while in the employment of the respondents with no problems arising.
5.16. As to whether the respondents’ criticisms of the complainant that she was not discharging her tasks as a pre-Montessori teacher properly constitute harassment, as well as general criticisms of her performance as outlined in the preceding paragraphs, it is the timing that links these criticisms to the complainant’s pregnancy. This raises an inference of pregnancy-related, less favourable treatment on grounds of gender pursuant to A Company v. A Worker. While the respondents stated that the complainant’s work had previously given rise to criticism, they did not submit any additional evidence as to the substance or frequency of those criticisms. In addition, they do no dispute criticising the complainant as submitted by her. Finally, I note that the respondent’s criticisms were not stated in writing, as mandated by A Company v. A Worker.
5.17. I therefore find that the respondents have insufficiently rebutted the inference of less favourable treatment that has arisen with regard to their criticisms of the complainant.
5.18. I now turn to the events that unfolded on 14 October. Ms Odel Grant stated that she remembered to ask for the complainant’s due date, so as to not fall foul of the respondent’s obligations under the Maternity Protection Act, 1994 with regard to the start of the complainant’s maternity leave. Ms Grant stated that she was informed by the complainant that the due date was 7 November 2004. She stated that the complainant gave her the phone number of her GP and that the complainant asked her to ring her GP. Ms Grant further stated that she asked the complainant to leave work subject to clarification of the due date, and that she felt it would be better to err on the side of caution in this matter.
5.19. At the hearing, the complainant disputed that she gave Ms Grant the telephone number of her GP, or consented to her GP being contacted. After the hearing, the complainant submitted a note from her GP that stated that the GP did not discuss details of the complainant’s pregnancy with Ms Odel Grant, which shows that a telephone conversation did indeed take place. Again, I prefer the complainant’s evidence to that of the respondents in this matter.
5.20. I further note that pursuant to S. 9 of the Maternity Protection Act, 1994, as it was in force at the material time, the onus is on the pregnant worker to advise her employer of the expected date of confinement at least four weeks before her maternity leave is due to begin, and to produce a medical or other appropriate certificate to this effect. It is not the employers business to discuss these matters directly with the pregnant worker’s medical care providers, and is an invasion of the worker’s privacy. The appropriate procedure would have been to request such information from the complainant’s GP through the complainant.
5.21. I therefore find that the respondents’ action in this matter constitute less favourable treatment of the complainant on grounds of gender, in relation to her pregnancy.
5.22. With regard to the end of her employment with the respondents, the complainant stated that she never went back to work in the crèche, but rather wrote to the directors four weeks before the end of her maternity leave in April 2005 to advise them that she would not return to work, due to the ill-health of her baby. She submitted her letter to the Directors in evidence.
5.23. Since the complainant stated a clear reason for giving notice to the respondents before the end of her maternity leave that has no connection to the case on hand, I find that there is no prima facie case of discriminatory dismissal of the complainant.
Decision
6.1. Based on all of the foregoing, I find that
(i) The respondents did harass the complainant on the ground of gender pursuant to S. 6(2)(a) of the Acts by remarking in her presence, to her colleagues, that said colleagues should not get pregnant, contrary to S. 14(6) of the Acts;
(ii) The respondents treated the complainant less favourably on the ground of gender pursuant to S. 6(2)(a) of the Acts by constantly criticising performance of cleaning tasks which she found difficult to do because of her pregnancy, and by criticising her performance as a pre-Montessori teacher after they had become aware that the complainant was pregnant contrary to S. 8(1)(b) of the Acts;
(iii) The respondents treated the complainant less favourably on the ground of gender pursuant to S. 6(2)(a) of the Acts when they contacted her GP on 14 October 2004 without the complainant’s consent, with the intent of discussing the complainant’s pregnancy;
(iv) The respondents did not discriminatorily dismiss the complainant on the ground of gender pursuant to S. 6(2)(a) of the Acts.
6.2. The complainant noted in a letter to the Tribunal that being vindicated was more important to her than financial compensation. However, I find that the extent of discrimination that the complainant has suffered on account of her pregnancy does warrant financial compensation, and therefore order the respondent to pay the complainant €15,000 in compensation. This award is not subject to tax.
__________________
Stephen Bonnlander
Equality Officer
16 June 2008